Western stations ask for new election to fill McTaggart’s seat on NPR Board

Published in Current, November 21, 2011

When a candidate wins re-election but withdraws from service before taking office, does the electorate get another chance to vote?

Given the irregular turnover after NPR Board elections this summer, station leaders in Western States Public Radio think so.

After American Public Media President Jon McTaggart won re-election to a three-year term and resigned before taking the director’s seat, WSPR objected to the NPR Board’s decision to appoint a replacement rather than hold a new election.

The resolution said its complaint involved procedure, not McTaggart or the board’s selection to succeed him, Marita Rivero, g.m. of television and radio at Boston’s WGBH.

Managers attending the regional association’s meeting, Nov. 2–4 in Phoenix, unanimously endorsed a resolution asking NPR to conduct a special election to fill the directorship for the new board term that began this month.

Jefferson Public Radio Executive Director Ron Kramer, who wrote the resolution, released a volley of letters that he and JPR’s attorney had exchanged with NPR leaders. WSPR also dispatched Carl Matthusen, retired g.m. of KJZZ in Phoenix and a former NPR Board chair, to present its resolution to the NPR Board during its Nov. 11–12 meeting in Washington, D.C.

The resolution includes “five ‘whereases,’” Matthusen told the board’s membership committee Nov. 11, “but what it boils down to is: WSPR is concerned that in the recent election, the board didn’t follow the bylaws.”

In the face of WSPR’s complaint, the membership committee stood behind the handling of the matter by interim NPR President Joyce Slocum.

Slocum, who was the network’s general counsel until she was thrust into the interim presidency by Vivian Schiller’s departure, acknowledged that NPR’s bylaws don’t specify how to handle the unusual circumstance. The only way to clarify the procedure is to amend the bylaws, a process that begins with a petition signed by the authorized representatives (A-Reps) of 15 member stations.

“We do not agree that the proper way to fill [the seat] is with another election,” Slocum said. She defended Rivero’s appointment as consistent with past practice.

Rivero declined Current’s request for an interview but said via email: “I’m happy to have been elected to serve on the NPR Board. My understanding is that the decision to fill the position in this way is consistent with NPR’s bylaws.”

“Extraordinary assurances” sought

The circumstances of McTaggart’s resignation are unusual but not without recent precedent. Cincinnati Public Radio’s Richard Eiswerth won election to the board in 2009, but before his term began NPR said he was not qualified to be seated because his financially squeezed station was behind in paying its NPR dues, he told Current in a later interview.

In Eiswerth’s place, the board appointed Greg Petrowich of WSIU in Carbondale, Ill., to a three-year term, Petrowich confirmed. His vote count in the board election put him just behind Eiswerth in the election results.

This summer, both McTaggart and Rivero ran for new terms on the NPR Board, and McTaggart won more votes. But — unbeknownst to station managers who voted in the election — NPR was reviewing McTaggart’s eligibility for board service during balloting.

McTaggart’s promotion from chief operating officer of APM and Minnesota Public Radio to president and c.e.o., announced in April, put him in the unique position of serving simultaneously on the governance boards of the two largest producers and distributors of public radio programming, a potential violation of federal antitrust law (Current, Nov. 7, 2011).

NPR hired antitrust attorneys with the firm of WilmerHale to analyze the potential conflict but, not wanting to prejudice the outcome of the election, kept the concerns under wraps, according to Dana Davis Rehm, NPR spokeswoman. During the 30 days of electronic balloting for the board election, from mid-June to mid-July, the outside lawyers had not yet concluded their analysis, she said.

WilmerHale’s team examined McTaggart’s eligibility under the Clayton Antitrust Act, which sets thresholds for determining whether a director can serve on boards of two companies that compete against each other. After discussing the analysis, the board concluded that NPR “didn’t have an alternative but to request his resignation,” Rehm said.

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Two months after the election closed, station managers learned of McTaggart’s resignation and the board’s decision to seat Rivero in his place. Her official vote count put her next in line for election.

At least one station exec who questioned the appropriateness of having APM’s leader on the NPR Board was also concerned about the way the board handled McTaggart’s departure.

Kramer, a former WSPR president and executive director of Oregon-based Jefferson Public Radio, raised questions about McTaggart’s candidacy in early June, yet NPR let station reps vote with no knowledge of the potential conflict, he objected in a Sept. 29 letter to Slocum and NPR Chair Dave Edwards. He went on to write the WSPR resolution urging the board call another election rather than seating Rivero.

NPR’s handling of the delicate situation prevented A-Reps from making informed judgments about the entire slate of candidates, taking into account station size, geographic representation and licensee type as they decided how to cast their votes among the candidates, Kramer wrote. Tapping Rivero to fill the seat on the basis of her vote count “does not excuse the fact that the voting might have been different had A-Reps known that McTaggart was not eligible to serve.”

Kramer pointed to NPR bylaws provisions for dealing with board vacancies, newly created directorships and balloting provisions for re-votes, and asserted that NPR should follow provisions for calling a new election. This provision, Section 4.5 (e), allows for balloting in the event of a tie between station manager nominees and “if there is any other reason for requiring a re-vote for any office” at the discretion of the NPR chair.

Slocum, a self-described “governance geek,” disagreed with Kramer’s analysis in her Nov. 8 reply. The re-voting process Kramer and WSPR favor is not authorized by the bylaws in this instance, she wrote, and it raises many procedural questions. Seating the board candidate with the next-highest number of votes respects “the votes of the membership, without requiring the governance upheaval and cost of an entirely new election,” Slocum wrote.

The argument didn’t end there. Media attorney Ernest Sanchez, who is well-versed in NPR’s bylaws because he wrote them when he was general counsel for the network, appealed to Slocum on behalf of Kramer’s Jefferson Public Radio.

Turmoil in NPR’s leadership and uncertainties over federal funding have eroded stations’ trust, and “[m]any NPR members have been wondering aloud about the strength of NPR’s commitment to being governed as a membership organization,” Sanchez wrote in a Nov. 9 letter to Slocum. “This should be a time when NPR provides extraordinary assurances that the rights of the NPR membership to elect its own board members are respected.”

The board doesn’t have the authority to change the bylaws provisions that are in question, Slocum said during the membership committee meeting. That power resides with authorized reps of member stations, who initiate the process by drafting a petition to amend the bylaws and getting 15 signatures on it.

“If the membership feels that the next highest vote-getter isn’t the person to fill the open board seat, then we should amend the bylaws,” said Bill Davis, a board member and president of APM-operated KPCC in Pasadena, Calif. The approach that NPR took by following the voting results “is the most open and transparent way of handling this, short of another election.”

The membership committee did endorse a plan to alter the timing of board elections. The online balloting period would be delayed one month, moving it to the period between July 13 and Aug. 13. The shift would give board candidates a chance to discuss issues with A-Reps during NPR’s annual meeting in July, and it would shorten the gap between the election and the beginning of new board terms in November.